Rosie works as a chef in a restaurant owned by celebrity chef Con Carney. Known to his mates as “Chilly” Con Carney, he epitomises coolness. He impresses the impressionable mostly by having his own TV programme and also by driving an electric blue Maserati. To Rosie and her co-workers his “Chilly” moniker fittingly portrays the outright cold disdain he has for employee rights. Con’s idea of having a competitive edge means “possessing” low paid workers who could be readily exploited and cast aside before they had completed the mandatory 12 months service needed under the Unfair Dismissals Acts. He makes an exception for Rosie.
Rosie is a great chef and is the real secret behind Con’s success. When Con disappears nightly in a plume of exhaust fumes and Armani, the diners in the “The Strangled Serf” tuck into the culinary delights produced by Rosie. Rosie has just commenced her fifth year of employment, unlike her co-workers, but she has received a fixed-term contract each year beginning on January 1st and ending on December 31st. Rosie has a feeling of uneasiness and wants a singular contract that is more tangible and secure. She recently applied for a car loan and her bank refused on the basis that they considered the series of fixed-term contracts to signify a precarious employment relationship. Rosie took out SIPTU confidential membership some years ago. So what can Rosie do?
Primarily, the first thing for Rosie to do would be to contact the Workers Rights Centre at 1800 747 881. This Centre has recovered an average of €4 million in compensation per year for SIPTU members since its inception in 2010 and has advised and represented thousands of members in that period.
In this instance the advice would be for Rosie to consider seeking a contract of indefinite duration under the Protection of Employees (Fixed-Term Work) Act, 2003.
What is the purpose of this legislation?
The Fixed-Term Act comes from a European Directive and was part of a suite of protective legislation put in place to protect “atypical” workers. Its purpose is basically twofold: To ensure fixed-term workers cannot be treated in a less favourable manner than a comparable permanent employee and also to prevent the abuse of excessive continuous fixed term contracts. In this instance Rosie will be seeking to address the use of continuous fixed term contracts and so will be seeking a contract of indefinite duration (CID).
What is a Contract of Indefinite Duration (CID)?
A CID has all the attributes of a permanent contract. There is no actual definition under the Act but the High Court has declared the contents of the CID should mirror the last fixed-term contract, but have no termination date. The obvious value of a CID to Rosie would be that it would somewhat alleviate the insecurity surrounding her position at each year’s end and strengthen her hand when dealing with credit institutions. It would be unwise to suggest that a CID offers ultimate job security to Rosie given the volatile nature of the restaurant trade.
How does Rosie qualify for a CID under the Act?
The fundamental rule is that a worker has to have two or more continuous fixed-term contracts with an aggregate duration of more than four years. Rosie had just started her fifth year therefore she would seem to have an entitlement.
Has the employer got a defence?
The employer can raise the defence that there are objective grounds for justifying the decision to continue with fixed-term contracts, other than grounds based on the fixed-term status of the employee. Such grounds must be provable and capable of independent audit. In this case it would be difficult to see how Mr Carney could mount such a defence.
How can Rosie bring a claim and can she be punished by the employer for doing so?
The union, acting on her behalf, can refer her claim for a CID to the Rights Commissioner and onwards in appeal to the Labour Court, if necessary. It is also unlawful for an employer to penalise any employee for taking a claim under the Act.
Rosie won’t be getting the sun, moon and stars as a result of her union membership but she will be afforded protection, advice and representation. She might well go on to help organise some of her other co-workers at “The Strangled Serf”.
Any similarity between this story and actual living beings is purely co-incidental.
Always contact your union for advice before considering a claim under the Protection of Employees (Fixed-Term Work) Act as each case needs to be assessed on its own merits.